Skakel ruling rocks justice system

Neil Vigdor

Updated 12:26 am, Sunday, October 27, 2013

Robert F. Kennedy, Jr. speaks to the press after testifying in a hearing for his cousin, Michael Skakel, at Stamford, Conn., Superior Court, Tuesday, April 17, 2007. Michael Skakel who was convicted in 2002 for the 1975 murder of Martha Moxley, is seeking a new trial.
Photo: CHRIS PREOVOLOS, File Photo

So much for the connection to America's most star-crossed political dynasty, one that makes Skakel's family members groan.

Without DNA evidence to prop up a prisoner's claim of unlawful detention, the chances of a habeas corpus action yielding a new trial are said by litigators and scholars of the law to be very slim.

"They don't like to let go somebody who has been convicted after a jury trial," said Robert F. Kennedy Jr., Skakel's cousin and a professor at Pace Law School in White Plains, N.Y. "I think Judge Bishop looked at it and recognized that it was a travesty of justice. He had the courage to essentially look at the case."

Skakel, 53, is serving 20 years to life in prison for beating Moxley to death with a golf club in the patrician Belle Haven neighborhood the night before Halloween. Both were 15 at the time.

Denied parole last fall, Skakel sued the state Department of Correction for unlawful imprisonment. He blamed his 2002 conviction on Mickey Sherman, petitioning for a new trial on the grounds that his lawyer was so distracted by fame and back taxes he owed the government that he left many stones unturned.

Bishop agreed, ordering a new trial in a 136-page decision that has jolted the legal community and cable news.

"Statistically, it doesn't happen. Anecdotally, it doesn't happen," said Philip Russell, a Greenwich-based defense attorney and former assistant district attorney in the Bronx. "They are typically a last-ditch effort when a criminal appeal has already been unsuccessfully litigated. The facts of this case, though, were uniquely suited to habeas relief."

That makes Skakel's quest for another day in court all the more remarkable and, at the same time for previously victorious prosecutors across the country, chilling because of the potential precedent. Aggrieved prisoners have a blueprint, courtesy of Skakel.

"The conventional wisdom has always been that to have your conviction thrown out because your lawyer was incompetent, that lawyer would have had to have practically been asleep at the defense table," said Timothy Dumas, a Greenwich native and author of the 1998 book on the Moxley case, "Greentown: Murder and Mystery in Greenwich, America's Wealthiest Community."

Dumas characterized Bishop's decision as a great surprise that could open the door to new DNA testing of Moxley's clothes from the crime scene.

"He's had 13 years of decisions all going against him, some of them, I might add, a little questionable, and finally, at the 11th hour, he has the big one go right for him," Dumas said of Skakel.

The State's Attorney's Office vowed to appeal Bishop's ruling, which could either be taken up by the Appellate Court or the state Supreme Court.

"It's an open question whether (if) the state's appeal of this does not prevail, will they want to go to trial again?" Dumas said.

Yale Law Professor Steven Duke gives the upper hand to Skakel at this juncture in the legal marathon.

"I think it is unlikely that the Supreme Court of Connecticut will reverse the decision," Duke said. "I also believe, as I have for a very long time, that the evidence against Skakel was very thin and that he is likely innocent."

Greenwich Police Chief James Heavey squelched the possibility that his department will resume its investigation of Moxley's slaying.

"It's not like the case is going to be reopened," Heavey said. "The case is already done."

Heavey said that most of the evidence is in the custody of the State's Attorney's office and that many of the investigators have retired from the department.

Silent when the homicide case finally went to trial in 2002, Skakel took the stand for an hour and three-quarters this April in a remote courtroom northeast of Hartford in Rockville.

Skakel renounced his family ties to the Kennedys, vehemently denying that he once bragged that he would get away with Moxley's slaying because of his famous bloodline.

"It's laughable. No, the Kennedys and the Skakels are much like the Hatfields and McCoys," Skakel said. "We have a feud going way, way back."

Robert Kennedy Jr. echoed his cousin in comments to Hearst Connecticut Newspapers on Friday.

"The press loves this narrative, a privileged family, the Kennedys -- neither of these guys are Kennedys -- committed murder and got away with it," he said, referring to Michael Skakel and his older brother Thomas, who was also a suspect in the murder.

Kennedy stood by his cousin's pronouncement of his innocence.

"Michael has been told that if he confessed to the crime that he would be able to get paroled and he has refused to do that," he said. "He's not going to say he did something that he didn't do."

Much of Skakel's testimony this spring amounted to a blistering indictment of his former lawyer.

"He said he was a media whore," Skakel testified that Sherman once told him while the two were at the posh Breakers Hotel in Palm Beach, Fla.

The scope of Skakel's wrongful imprisonment claim was less about proving his innocence and more about demonstrating the incompetence of Sherman, who he said disobeyed his calls to reject a Darien cop and Moxley family acquaintance from becoming jurors.

"It was always, I'm not a lawyer, you don't understand," Skakel said.

Skakel said Sherman admitted so much to him when his lawyer visited him in prison.

"He said, `Don't worry about it. We'll get a new trial. I, quote, F'd up on picking the jury. Next time, we'll pick a better jury,' " Skakel recalled.

Sherman insists that he represented Skakel to the best of his ability, however.

Kennedy said he was not impressed with Sherman's handling of Skakel's defense or his antics when court was not in session.

"Mickey was leaving court every day and getting in a limousine with Dominick Dunne and Mark Fuhrman, who were adversaries, and then going out in the city and partying," Kennedy said of the pair who both penned books on the case.